(Code 1981, §53-8-13, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 1997, p. 1352, § 25; Ga. L. 2020, p. 377, § 1-57/HB 865.)
Cross references.- Livestock dealers and auctions, T. 4, C. 6.
Regulation of advertising generally, § 10-1-420 et seq.
Age of majority, § 39-1-1.
Abolition of dower, § 53-1-3.
Guardians ad litem and appraisers for year's support in probate court proceedings, Uniform Rules for the Probate Courts, Rule 23.
Law reviews.- For article discussing methods of summary distribution and settlement of decedent's estate, see 6 Ga. L. Rev. 74 (1971). For article surveying wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).
COMMENTThis section replaces former OCGA Secs. 53-8-20, 53-8-22 through 53-8-36, and 53-8-38 through 53-8-47 with streamlined procedures for the sale of estate property. Subsection (d) carries forward former OCGA Sec. 53-8-49. Subsection (e) carries forward the provisions of former OCGA Sec. 53-8-50. Subsection (f) replaces former OCGA Sec. 53-8-51 with a provision that allows but does not require the divesting of liens on real property sold under the provisions of this Code section. Former OCGA Secs. 53-8-70 through 53-8-73, dealing with claims to property proposed to be sold, are repealed. Former Code Sections 53-8-20, 53-8-22, 53-8-38 and 53-8-47 now appear in Article 2 of Title 29 (Guardian and Ward).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Laws 1826, Cobb's 1851 Digest, p. 323, former Code 1863, § 2518, former Code 1868, § 2520, Ga. L. 1869, p. 13, § 1, former Code 1873, §§ 2564 and 2568, former Code 1882, § 2559, former Civil Code 1895, §§ 3446, 3450, 3454, 3457, and 3463, former Civil Code 1910, §§ 4022, 4024, 4025, 4026, 4029, 4033, and 4035, former Code 1933, §§ 113-1702 - 113-1707, 113-1709, 113-1714, 113-1716 - 113-1718, and 113-1720 - 113-1722, Ga. L. 1943, p. 416, § 1, and former O.C.G.A. §§ 53-8-20,53-8-23,53-8-24,53-8-34,53-8-36,53-8-46,53-8-47, and53-8-51 are included in the annotations for this Code section.
Constitutionality.
- Legislature has power to establish the rule of evidence set forth in this statute. Banks v. State, 124 Ga. 15, 52 S.E. 74 (1905) (decided under former Civil Code 1895, § 3454).
Law is inapplicable when administrator is not seeking to sell property. Pritchard v. Myers, 219 Ga. 290, 133 S.E.2d 95 (1963) (decided under former Code 1933, § 113-1714).
Scope.
- "Property" in this statute applies to all kinds of property. Downing Lumber Co. v. Medlin & Sundy, 136 Ga. 665, 72 S.E. 22 (1911) (decided under former Civil Code 1910, § 4033).
Statute provides that if in a sale by an administrator there be irregularities, or the administrator fails to comply with the law as to the mode of the sale, the sale is voidable except as to innocent purchasers. This statute applies also to sales by guardians, but it protects innocent purchasers against nothing except irregularities in carrying out a valid order. And the first part of the statute provides that "to divest the title of the heir at law, the administrator must have authority to sell." Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935) (decided under former Code 1933, § 113-1720).
Fraud between the executor and the executor's immediate grantee will not affect subsequent purchasers for value who derived title through the deed of the executor bona fide and without any notice of the alleged fraud. Wood v. Bowden, 182 Ga. 329, 185 S.E. 516 (1936) (decided under former Code 1933, § 113-1720).
Words "authority to sell" refer to order of ordinary (now probate judge) granting leave to sell. Wilcox v. Thomas, 191 Ga. 319, 12 S.E.2d 343 (1940) (decided under former Code 1933, § 113-1720); Guthrie v. Moran, 192 Ga. 607, 15 S.E.2d 890 (1941); Adamson v. Petty, 230 Ga. 87, 195 S.E.2d 436 (1973) (decided under former Code 1933, § 113-1720);(decided under former Code 1933, § 113-1720).
Construction.
- As applicable to sales of land by a guardian, former Code 1933, §§ 113-1706 and 113-1720 are to be construed together, and authority for the guardian to sell lands of a ward for education and support must be obtained by compliance with § 113-1706. Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935) (decided under former Code 1933, § 113-1706).
Former Civil Code 1910, §§ 4024 and 4028 are in pari materia and are to be construed together. Heard v. Sheffield, 136 Ga. 730, 71 S.E. 1118 (1911) (decided under former Civil Code 1910, § 4024).
Statute permits "wild uncultivated lands lying in counties other than that of the administration" to be disposed of at private sale; but the order authorizing such sale must be after notice. Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935) (decided under former Code 1933, § 113-1704).
Cultivated land in the adverse possession of any one would not be wild land, and could not be sold as such under this statute. Downing Lumber Co. v. Medlin & Sundy, 136 Ga. 665, 72 S.E. 22 (1911) (decided under former Civil Code 1910, § 4024).
Question as to whether lands are "wild uncultivated lands" is one for the jury. Downing Lumber Co. v. Medlin & Sundy, 136 Ga. 665, 72 S.E. 22 (1911) (decided under former Civil Code 1910, § 4024).
Object and purpose.
- Object of this statute is to prevent the administrator from sacrificing the value of the property by putting the property up for sale under such circumstances that the purchaser would buy a lawsuit along with the land. The law deems it more expedient that the administrator should first end the lawsuit personally, and then sell for full value. Downing Lumber Co. v. Medlin & Sundy, 136 Ga. 665, 72 S.E. 22 (1911) (decided under former Civil Code 1910, § 4033); Booth v. Young, 149 Ga. 276, 99 S.E. 886 (1919); Thrift Bros. v. Baker, 144 Ga. 508, 87 S.E. 676 (1916) (decided under former Civil Code 1910, § 4033).See also (decided under former Civil Code 1910, § 4033).
Provisions of this statute do not apply when the adverse holder is a mere squatter. Coggins v. Griswold, 64 Ga. 323 (1879) (decided under former Code 1873, § 2564).
Adverse possession.
- Possession may be constructive, as when actual adverse possession of a part of a tract will constructively extend to the limits described in a deed recorded or to the boundaries of which the adverse party had knowledge. Weitman v. Thiot, 64 Ga. 11 (1879) (decided under former Code 1873, § 2564).
When the claimant is in possession and contends that the claimant is holding the land adversely, it does not matter under this statute whether the claimant's title is good. Hall v. Armor, 68 Ga. 449 (1882) (decided under former Code 1873, § 2564); Edwards v. Sands, 150 Ga. 11, 102 S.E. 426 (1920);(decided under former Civil Code 1910, § 4033).
Possession becomes adverse for the purposes of this statute also when, after possession has been given under a bond for titles, the obligor dies. Heard v. Phillips, 101 Ga. 691, 31 S.E. 216 (1897) (decided under former Civil Code 1895, § 3457).
Adverse possession within the meaning of this statute may be evidenced by occupation and use of the premises. Guthrie v. Bullock, 143 Ga. 17, 84 S.E. 59 (1915) (decided under former Civil Code 1910, § 4033); Booth v. Young, 149 Ga. 276, 99 S.E. 886 (1919); Edwards v. Sands, 150 Ga. 11, 102 S.E. 426 (1920) (decided under former Civil Code 1910, § 4033);(decided under former Civil Code 1910, § 4033).
Word "irregularities" refers "to such matters as the mode of advertising, . . . or other irregularities in the procedure." Guthrie v. Moran, 192 Ga. 607, 15 S.E.2d 890 (1941) (decided under former Code 1933, § 113-1720); Adamson v. Petty, 230 Ga. 87, 195 S.E.2d 436 (1973);(decided under former Code 1933, § 113-1720).
Sale of land in the wrong county, there being shown a general order granting leave to sell but no special order to sell in the county where the sale took place, has been held to be mere irregularity. Guthrie v. Moran, 192 Ga. 607, 15 S.E.2d 890 (1941) (decided under former Code 1933, § 113-1720).
Agreement by an administrator to make a conveyance upon stipulated terms is contrary to public policy and unenforceable. Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963) (decided under former Code 1933, § 113-1706).
When the parties have agreed among themselves to a division of the property, a public or private sale in accordance with the statutory directives is not required. King v. King, 199 Ga. App. 496, 405 S.E.2d 319 (1991) (decided under former O.C.G.A. §§ 53-8-23,53-8-34, and53-8-36).
Administrators and other heirs to whom the administrators sold at public sale are required to abide by the terms of sale provided by the court of ordinary (now probate court) and announced by the administrators at the sale. Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974) (decided under former Code 1933, § 113-1706).
Adequate price.
- It is the duty of an administrator to sell the property of the administrator's intestate for an adequate price, and to withdraw it from sale when it becomes apparent to the administrator that it is about to be sacrificed for want of a bid commensurate with its true market value. Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974) (decided under former Code 1933, § 113-1706).
Law presumes there are debts to be paid, in absence of anything to contrary; and in order for a purchaser to be affected by a fraudulent exercise of a power of sale granted by a will, as when a sale is made for the purported purpose of paying debts when a sale for that purpose is not necessary, either participation in the fraud or notice of it by the purchaser would have to appear; therefore, when a sale is advertised and made as being necessary to pay debts, the presumption referred to is not overcome, as to an innocent purchaser, by the circumstance that the sale occurred about five years after the death of the testator. Wood v. Bowden, 182 Ga. 329, 185 S.E. 516 (1936) (decided under former Code 1933, §§ 113-1717 and 113-1720).
Purchase by administrator who is also heir.
- An administrator who is an heir at law of the administrator's intestate, and as such has an interest in property being sold by the administrator as such representative, may purchase at a sale of the property, provided the administrator is guilty of no fraud, and the property is exposed for sale in the ordinary mode and under circumstances to command the best price obtainable. Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974) (decided under former Code 1933, § 113-1706).
Loan of property not authorized.
- An executor's power to sell estate property does not include the power to make an indefinite, gratuitous loan of property. Rowland v. Clarke County Sch. Dist., 272 Ga. 471, 532 S.E.2d 91 (2000) (decided under former O.C.G.A. § 53-8-20).
Cited in Miller v. Hines, 145 Ga. 616, 89 S.E. 689 (1916); Blumenthal v. Cain, 22 Ga. App. 596, 96 S.E. 710 (1918); Dukes v. Bashlor, 162 Ga. 403, 134 S.E. 98 (1926); Middleton v. Westmoreland, 164 Ga. 324, 138 S.E. 852 (1927); Bond v. Maxwell, 40 Ga. App. 679, 150 S.E. 860 (1929); Terrell v. Harris, 42 Ga. App. 760, 157 S.E. 387 (1931); Paris v. Treadaway, 173 Ga. 639, 160 S.E. 797 (1931); Gabrell v. Byers, 178 Ga. 16, 172 S.E. 227 (1933); Price v. Nehi, Inc., 49 Ga. App. 196, 174 S.E. 722 (1934); Colyer v. Huntley, 179 Ga. 332, 175 S.E. 901 (1934); Williamson v. Key, 179 Ga. 502, 176 S.E. 373 (1934); Mutual Benefit Life Ins. Co. v. Wilson, 189 Ga. 344, 6 S.E.2d 716 (1939); Robinson v. Georgia Sav. Bank & Trust Co., 106 F.2d 944 (5th Cir. 1939); Hortman v. Vissage, 191 Ga. 446, 12 S.E.2d 294 (1940); Wilcox v. Thomas, 191 Ga. 319, 12 S.E.2d 343 (1940); East Atlanta Bank v. Limbert, 191 Ga. 486, 12 S.E.2d 865 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Aiken v. Mitchell, 70 Ga. App. 351, 28 S.E.2d 389 (1943); United States v. Williams, 164 F.2d 989 (5th Cir. 1947); Brown v. Gibson, 203 Ga. 213, 46 S.E.2d 68 (1948); Smith v. Tippins, 207 Ga. 262, 61 S.E.2d 138 (1950); Strickland v. Padgett, 209 Ga. 261, 71 S.E.2d 545 (1952); Salter v. Wetmore, 90 Ga. App. 672, 83 S.E.2d 852 (1954); Turner v. Kelley, 212 Ga. 175, 91 S.E.2d 356 (1956); Moore v. Hartford Accident & Indem. Co., 102 Ga. App. 514, 117 S.E.2d 206 (1960); Cummings v. Johnson, 218 Ga. 559, 129 S.E.2d 762 (1963); Freedman v. Scheer, 223 Ga. 705, 157 S.E.2d 875 (1967); Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968); Adamson v. Petty, 230 Ga. 87, 195 S.E.2d 436 (1973); Barfield v. Hilton, 232 Ga. 235, 206 S.E.2d 1 (1974); Wiley v. Wiley, 233 Ga. 824, 213 S.E.2d 682 (1975); First Nat'l Bank v. Rapides Bank & Trust Co., 145 Ga. App. 514, 244 S.E.2d 51 (1978); Duncan v. Baggett, 247 Ga. 609, 277 S.E.2d 733 (1981); Hawkins v. Walker, 158 Ga. App. 562, 281 S.E.2d 311 (1981); State Revenue Comm'r v. Fleming, 172 Ga. App. 887, 324 S.E.2d 821 (1984); Bell v. King, Phipps & Assocs., 176 Ga. App. 702, 337 S.E.2d 364 (1985); Rowland v. Clarke County Sch. Dist., 272 Ga. 471, 532 S.E.2d 91 (2000).
Sale Generally
Sale as void unless conducted in accordance with statute.
- When a record shows that the provisions of this statute have not been complied with, a sale must be held void. Fussell v. Dennard, 118 Ga. 270, 45 S.E. 247 (1903) (decided under former Civil Code 1895, § 3446).
Withdrawing property from sale when highest bid falls below fair market value.
- An administrator not only has a right to withdraw an intestate's property from sale, but it is the administrator's legal duty to do so when it becomes apparent to the administrator that it is about to be sacrificed for want of a bid commensurate with its true market value, since nothing can be tolerated which comes into conflict or competition with the interest or welfare of those interested in the estate. Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959) (decided under former Code 1933, § 113-702).
When the property involved was, at the time of the property's sale, reasonably worth $2,000.00, and the intestate's administrator sold the property to his wife for $600.00, knowing at the time that her bid was for an amount far less than its fair and reasonable market value, it was the legal duty of the administrator to have withdrawn the property from sale and not to have knocked it off to his wife - the highest bidder. Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959) (decided under former Code 1933, § 113-702).
When the administrator and the administrator's wife, while property was being exposed for sale, requested various persons attending the sale as prospective purchasers not to bid on the property, the intestate's property was not exposed for sale under circumstances to command the best price obtainable. Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959) (decided under former Code 1933, § 113-702).
As a general rule, an administrator cannot bid at an administrator's sale of property belonging to an intestate's estate, and this rule applies to the administrator's wife just as it does to the administrator. Wallace v. Wallace, 142 Ga. 408, 83 S.E. 113 (1914) (decided under former Civil Code 1910, § 4022); Warner v. Hill, 149 Ga. 464, 100 S.E. 393 (1919); Devaughn v. Griffith, 149 Ga. 697, 101 S.E. 794 (1920) (decided under former Civil Code 1910, § 4022); Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959);(decided under former Civil Code 1910, § 4022);(decided under former Code 1933, § 113-1702).
Sale for payment of debts and distribution must comply with statute.
- Upon the death of the realty owner intestate, title vests directly in the heirs, subject to administration for payment of debts and distribution. Administrators can only sell real estate for these purposes after complying with former O.C.G.A. § 53-8-23, receiving leave to sell from the probate court, and proper advertisement. Horn v. Wright, 157 Ga. App. 408, 278 S.E.2d 66 (1981) (decided under former O.C.G.A. § 53-8-23).
When a will contained the following: "I wish my executor, as soon as possible after my death, to pay all my debts. If a sale of property shall be necessary I wish him to select for sale that which can be most advantageously used for that purpose; and I authorize him to sell the same at public or private sale, as he may see fit," under this provision, no application to the court of ordinary (now probate court) for leave to sell for the purpose of paying debts was necessary in order to exercise the power of sale. Wood v. Bowden, 182 Ga. 329, 185 S.E. 516 (1936) (decided under former Code 1933, § 113-1717).
When no authority for private sale of realty is conferred by will, the executor thereunder is without power to enter into a contract for such sale of the property of the testator's estate; such a contract is violative of public policy, and is unenforceable. Fisher v. Pair, 69 Ga. App. 492, 26 S.E.2d 187 (1943) (decided under former Code 1933, § 113-1716).
An administrator is not under any duty immediately to sell real property of the administrator's intestate after the expiration of the administration year; but, before the real property can be sold, it must distinctly be shown to the ordinary (now probate judge) that it is necessary to sell the land to satisfy one of the conditions referred to in this statute. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1706).
It is not an absolute requirement of the law that an administrator shall sell all of the land of the estate at the expiration of the administration year and that the land shall be sold only for the payment of debts or distribution. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1706).
Allegation that the real property was not sold promptly or at the expiration of the administration year did not show a breach of the bond of the administrators as there is no requirement of the law that an administrator shall sell the real estate promptly after the administrator's qualification, nor does the law require that an administrator sell the real property at the expiration of the year. Patterson v. Fidelity & Deposit Co., 181 Ga. 61, 181 S.E. 776 (1935) (decided under former Code 1933, § 113-1706).
Infeasibility of division of the land and the necessity of a sale for the purpose of distribution is one of the purposes for which land may be sold by an administrator. Warren v. Warren, 104 Ga. App. 184, 121 S.E.2d 343 (1961) (decided under former Code 1933, § 113-1706).
Allegations to the effect that a sale by the executor should be enjoined because there are in fact no debts of the estate, afford no reason for the grant of an injunction, when the executor obtained from the ordinary (now probate judge) an order permitting the sale for the purpose of paying the indebtedness claimed by the executor to be due. Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105 (1961) (decided under former Code 1933, § 113-1706).
When, after due notice, leave has been regularly granted by the court of ordinary (now probate court) to an administrator to sell realty of a decedent, equity will not restrain the sale by injunction at the instance of an heir on account of reasons which could have been as readily urged in a caveat to the application for leave to sell. Brewton v. McLeod, 216 Ga. 686, 119 S.E.2d 105 (1961) (decided under former Code 1933, § 113-1706).
Effect of alteration of terms generally.
- When an administrator or executor alters the terms of a sale from those advertised, the administrator or executor can hold a purchaser to the altered terms only by showing clearly that the latter had actual knowledge of the altered terms before bidding off the property. Daniel v. Jackson, 53 Ga. 87 (1874) (decided under former Code 1873, § 2568).
Legality of parol declarations as to altered terms of sale.
- Under the common law, printed or written particulars and conditions of sale could not be contradicted, added to, or altered by verbal declarations made by the auctioneer at the time of sale, but the Supreme Court is not disposed to apply this common-law rule so strictly as to exclude all parol declarations as to the altered terms of sale from the printed or written advertisements made by executors and administrators at their public sales, under the laws of this state, when the bidder or purchaser has full knowledge of such altered terms, and acts upon those terms. Adamson v. Petty, 230 Ga. 87, 195 S.E.2d 436 (1973) (decided under former Code 1933, § 113-1718).
Sale not set aside when specific terms of sale not advertised.
- Terms of a sale as advertised may be altered at the sale itself, and the mere failure of the administrator to advertise specific terms of sale is not a sufficient ground to set aside the sale, since the terms of the sale were announced on the day of the sale. Duncan v. Baggett, 247 Ga. 609, 277 S.E.2d 733 (1981) (decided under former Code 1933, § 113-1718).
Sale of property to highest bidder approved.
- Probate court properly approved the sale of property belonging to the estate of a child's deceased parent to the highest bidders because all interested parties, including the child, understood the timeline for bidding on the property, and the child presented a $150,000 offer after the bidding period expired; the parties' agreed-upon sales procedure did not give heirs 30 days to counter any offer presented by another bidder. In re Estate of Gore, 292 Ga. App. 285, 664 S.E.2d 290 (2008).
Sale must be properly conducted.
- When administrator exposed the administrator's intestate's property for sale during the legal hours of sale, but intentionally selected a time for the sale, sold the property and personally purchased the property when no one was present at the place the administrator was required to sell except the administrator and the administrator's attorney, the petition sufficiently alleged that the administrator's sale of the property was not conducted under circumstances to command the best price, but the contrary for an amount equal to only one-half of its true value. Anderson v. Miller, 212 Ga. 477, 94 S.E.2d 321 (1956) (decided under former Code 1933, § 113-1707).
Conditions of sale.
- Nothing in either O.C.G.A. § 53-8-23 or O.C.G.A. § 53-8-24 enumerates what conditions may be placed upon a sale of real property. Buckmon v. Futch, 237 Ga. App. 67, 514 S.E.2d 863 (1999) (decided under former O.C.G.A. §§ 53-8-23 and53-8-24).
Purchase authorized when administrator is also heir.
- When the administrator is an heir at law of an intestate, and as such has an interest in the property one is selling as such representative, he or his wife may purchase at his sale of the property, provided the administrator is guilty of no fraud, and it is exposed for sale in the ordinary mode and under circumstances to command the best price obtainable. Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959) (decided under former Code 1933, § 113-1702).
When the administrator, or his wife, is the purchaser of property in which the administrator, as an heir at law, has an interest, the administrator's sale of it to either will be upheld only when the sale is conducted legally and with absolute fairness to the intestate's other heirs at law and when the amount bid is an adequate price for the property sold. Hall v. White, 215 Ga. 144, 109 S.E.2d 516 (1959) (decided under former Code 1933, § 113-1702).
Evidence supported leave to sell order for purpose of payment of debts and distribution. Veale v. Vandiver, 167 Ga. App. 865, 307 S.E.2d 749 (1983) (decided under former O.C.G.A. § 53-8-34).
Because counsel's in-court statements and the documents in the court's file supported the findings that an estate property was hazardous and that a buyer would assume liability for it, and because a daughter acquiesced in conduct of the hearing, the probate court properly allowed the sale of the property under O.C.G.A. § 53-8-34. In re Estate of Bell, 274 Ga. App. 581, 618 S.E.2d 194 (2005) (decided under former O.C.G.A. § 53-8-34).
When executor is clothed solely with power to sell, and there is nothing to indicate an intention on the part of the testator to authorize the executor to sell at private sale, then the executor must sell after advertising and at public outcry. When the intention of the testator is in doubt as to the mode of sale, the safe rule is to adhere to the mode of sale prescribed by law. To take the case out of the general rule requiring executors to sell at public sale, the intention of the testator should be plainly and distinctly expressed in the words of the power, or should be found by necessary implication from the language used in conferring such power. Bonner v. Bell, 206 Ga. 98, 55 S.E.2d 612 (1949) (decided under former Code 1933, § 113-1717).
Sales by public outcry.
- In accordance with the intention of the legislature as appears from a consideration of a partial history of former O.C.G.A. § 53-8-34, subsection (b) (now subsection (c)) applies only to private sales by administrators and not to sales by public outcry. Duncan v. Baggett, 247 Ga. 609, 277 S.E.2d 733 (1981) (decided under former O.C.G.A. § 53-8-34).
Sale at public outcry.
- Sales by executors, if not otherwise provided by will, must be at public outcry to highest bidder. The purchaser is bound to see that the executor is apparently proceeding under the forms prescribed by law. If power be given in a will to sell land or personal property, this only dispenses with the necessity of an order of the court of ordinary (now probate court), and if the will does not expressly or impliedly provide for a private sale, such sales must be public; otherwise such sales are void. Bonner v. Bell, 206 Ga. 98, 55 S.E.2d 612 (1949) (decided under former Code 1933, § 113-1717).
Sale by administrator of land which is in adverse possession of third party, and conveyance by deed in pursuance thereof, are void and convey no title. Porter v. La Grange Banking & Trust Co., 187 Ga. 528, 1 S.E.2d 441 (1939) (decided under former Code 1933, § 113-1714); Toombs v. Hilliard, 209 Ga. 755, 75 S.E.2d 801 (1953);(decided under former Code 1933, § 113-1714).
Void deeds.- Deeds by an administrator which are given while land is in the adverse possession of a third party, or without notice, are void and convey no title. Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940) (decided under former Code 1933, § 113-1714).
Main reason that such sales are made void is that property, though actually belonging to the estate, would not likely bring the property's full value when held adversely to the estate and the administrator could not give possession. Porter v. La Grange Banking & Trust Co., 187 Ga. 528, 1 S.E.2d 441 (1939) (decided under former Code 1933, § 113-1714).
Burden of proof.
- Issue is whether or not property is subject to such sale, and burden of proof is upon administrator. Griffin v. Comarite, 41 Ga. App. 667, 154 S.E. 375 (1930) (decided under former Civil Code 1910, § 4033).
When the proof submitted is sufficient to establish title in the intestate at the time of death, and there is nothing whatever to indicate that the property is held by an adverse claimant, it will be presumed that possession accompanies title. Griffin v. Cromartie, 41 Ga. App. 667, 154 S.E. 375 (1930) (decided under former Civil Code 1910, § 4033).
When it appears that administrator was in possession, burden is upon claimant to show title. Luttgen v. Andrews, 174 Ga. 778, 163 S.E. 892 (1932) (decided under former Civil Code 1910, § 4033).
Administrator cannot sell property of an intestate without order of court of ordinary (now probate court), and a sale without such order is void and passes no title. Porter v. La Grange Banking & Trust Co., 187 Ga. 528, 1 S.E.2d 441 (1939) (decided under former Code 1933, § 113-1714).
Selling off.
- When the same people are administrators of a wife's estate and executors of the husband's estate, and having obtained from the ordinary (now probate judge) orders to sell the lands belonging to each estate, if the heirs and legatees enter into an agreement that the entire property may be offered and sold together at one time, and the lands belonging to both estates are by the executors and administrators so cried off and sold at public sale, the sale cannot on that ground be afterwards treated as invalid by one who entered into such agreement. Guthrie v. Moran, 192 Ga. 607, 15 S.E.2d 890 (1941) (decided under former Code 1933, § 113-1720).
If it would have been unlawful to sell various tracts of land subject to several different security deeds collectively under a single bid, it should be presumed that the administrator who sold the property, the estate holding the security, complied with the law and sold the tracts separately, until the contrary is shown, and a recital stating that the various tracts were all sold to an individual for a stated sum of money without more would not show that they were not sold separately and at prices aggregating the entire sum stated. Fraser v. Rummele, 195 Ga. 839, 25 S.E.2d 662 (1943) (decided under former Code 1933, § 113-1720).
Letters of administration granted to applicant therefor without causing citation to issue in conformity to law are wholly without legal force or effect. Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935) (decided under former Code 1933, § 113-1720).
Abiding by terms of sale required.
- Administrators and other heirs to whom they sold at public sale are required to abide by terms of sale provided by court of ordinary (now probate court) and announced by the administrators at the sale. Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974) (decided under former Code 1933, § 113-1703).
Recital as prima facie evidence of facts recited.
- A recital, in an administrator's deed, of a compliance with all of the requisites of the law necessary to be done after the order of sale is granted is prima facie evidence that these requisites were complied with. Davie v. McDaniel, 47 Ga. 195 (1872) (decided under former Code 1868, § 2520); Floyd v. Ricketson, 129 Ga. 668, 59 S.E. 909 (1907); John Doe v. Roe, 4 Ga. 148, 48 Am. Dec. 216 (1848) (decided under former Civil Code 1895, § 3454).See also (decided under former law).
Petition
Administrator alone is empowered to petition for authority to sell realty of a decedent when it is necessary for the payment of debts or for the purpose of distribution. Ireland v. Matthews, 129 Ga. App. 592, 200 S.E.2d 318 (1973) (decided under former Code 1933, § 113-1706) West v. Sharpe, 197 Ga. App. 140, 397 S.E.2d 616 (1990);(decided under former O.C.G.A. § 53-8-23).
Court of ordinary (now probate court) has no authority to order the administrator to sell realty in order to pay debts and to make distribution upon the application of one of the heirs. Ireland v. Matthews, 129 Ga. App. 592, 200 S.E.2d 318 (1973) (decided under former Code 1933, § 113-1706).
Objections to the application for leave to sell may be made by any person interested in the estate. Prine v. Mapp, 80 Ga. 137, 5 S.E. 66 (1888) (decided under former Code 1882, § 2559).
Objection should be made in the court of ordinary (now probate court). Grant v. Noel, 118 Ga. 258, 45 S.E. 279 (1903) (decided under former Code 1895, § 3450); Hobby v. Ford, 149 Ga. 176, 99 S.E. 624 (1919);(decided under former Civil Code 1910, § 4026).
Failure to file petition and notice of sale.
- Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436, 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-8-23).
Valid order may not be collaterally attacked.
- An order of a probate court granting an administrator of an estate the authority to sell land of the estate may not be collaterally attacked if the order is valid on its face. Lyday v. Burkes, 261 Ga. 465, 405 S.E.2d 472 (1991), cert. denied, 502 U.S. 1016, 112 S. Ct. 664, 116 L. Ed. 2d 755 (1992) (decided under former O.C.G.A. § 53-8-46).
Order
An administrator may sell the property of an intestate for the purpose of paying debts, after first obtaining an order from the court of ordinary (now probate court) for that purpose. Jernigan v. Radford, 182 Ga. 484, 185 S.E. 828 (1936) (decided under former Code 1933, § 113-1706).
Sale without order.
- When it appears on the face of the record that there was no valid order to sell, purchasers are not protected. Fussell v. Dennard, 118 Ga. 270, 45 S.E. 247 (1903) (decided under former Civil Code 1895, § 3463).
An administrator cannot, without an order from the judge of the probate court, legally sell a promissory note payable to the administrator's intestate, which has come to the administrator's hands as assets. Hiatt v. Tumlin, 46 Ga. App. 105, 166 S.E. 836 (1932) (decided under former Civil Code 1910, § 4025).
Sale without any order from the ordinary (now probate judge) is void, and passes no title to the purchaser. Dowling v. Keen, 187 Ga. 394, 200 S.E. 789 (1939) (decided under former Code 1933, §§ 113-1705 and 113-1706).
Order as an adjudication
- Before heirs are deprived of their right of inheritance, there not only must exist a necessity that the lands be sold by the administrator either to pay debts or to make distribution, the order granting leave to sell being evidence of such necessity, but also that the administrator actually sold the land; it is the sale under the order that divests the title. Sangster v. Toledo Mfg. Co., 193 Ga. 685, 19 S.E.2d 723 (1942) (decided under former Code 1933, § 113-1706).
Order by the ordinary's court (now probate court) is in effect not only leave to sell, but is an adjudication by a court of competent jurisdiction that it is necessary for the land to be administered for one or the other or both of the purposes indicated in former Code 1933, §§ 113-901 and 113-1706 (i.e., for payment of debts and distribution among the heirs) and that it is for the benefit of the heirs and creditors. Warren v. Warren, 104 Ga. App. 184, 121 S.E.2d 343 (1961) (decided under former Code 1933, § 113-1706).
When the estate consisted of approximately 50 acres with fractional interests as small as 1/280ths vested in great grandchildren of the testator, a division in kind was virtually impossible and the trial court did not err in appointing commissioners and directing a sale. Johnston v. Duncan, 227 Ga. 298, 180 S.E.2d 348 (1971) (decided under former Code 1933, § 113-1706).
Order is condition precedent to sale.
- See Patterson v. Lemon, 50 Ga. 231 (1873) (decided under Ga. L. 1869, p. 13, § 1); Fussell v. Dennard, 118 Ga. 270, 45 S.E. 247 (1903); Hollinshed v. Woodard, 124 Ga. 721, 52 S.E. 815 (1906) (decided under former Civil Code 1895, § 3450); Edwards v. Sands, 150 Ga. 11, 102 S.E. 426 (1920);(decided under former Civil Code 1895, § 3450);(decided under former Civil Code 1910, § 4026).
Requirement that the order must specify the land "as definitely as possible" is directory only, and indefiniteness is not an objection which can be urged collaterally. Brooks v. Rooney, 11 Ga. 423, 56 Am. Dec. 430 (1852) (decided under Laws 1826, Cobb's 1851 Digest, p. 323); Davie v. McDaniel, 47 Ga. 195 (1872); Hayes v. Dickson, 148 Ga. 700, 98 S.E. 345 (1919) (decided under former Code 1863, § 2518);(decided under former Civil Code 1910, § 4026).
Specification of terms.
- There is no specific requirement that an order granting leave to sell specify the terms of sale. Adamson v. James, 233 Ga. 130, 210 S.E.2d 686 (1974) (decided under former Code 1933, § 113-1706).
Administrator is an agent, with limited authority, and the administrator can only acquire power to sell by complying with the requirements of law as to advertisement and citation. And the court in turn only has authority to confer this power after such notice has been given. Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935) (decided under former Code 1933, § 113-1706).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under Ga. L. 1943, p. 236, § 5, are included in the annotations for this Code section.
While word "trustee," used in broad sense, includes guardians, the law will not permit other than strict construction of the word, which will not include a guardian. 1960-61 Op. Att'y Gen. p. 247 (decided under Ga. L. 1943, p. 236, § 5).
RESEARCH REFERENCES
Am. Jur. 2d.
- 25 Am. Jur. 2d, Easements and Licenses, § 11. 26 Am. Jur. 2d, Eminent Domain, § 261. 31 Am. Jur. 2d, Executors and Administrators, §§ 614, 724 et seq., 727 et seq., 732, 737 et seq., 755, 765 et seq., 787, 794, 804 et seq., 812, 814, 815, 825, 872, 881.
C.J.S.- 29A C.J.S., Eminent Domain, § 263. 30A C.J.S., Equity, § 59 et seq. 34 C.J.S., Executors and Administrators, §§ 329, 358 et seq., 404, 407, 653, 654, 659 et seq., 671, 678 et seq., 700, 702 et seq., 728 et seq., 745 et seq., 757 et seq., 765 et seq.
ALR.
- Right to exercise power of sale of real estate after time limited by will, 31 A.L.R. 1394.
Power of those who accept executorship or trusteeship to exercise right to sell real property conferred by will on several named as executors and trustees, some of whom fail to refuse to accept, 36 A.L.R. 826.
Right of personal representative or heir to sell burial lot owned by deceased, 76 A.L.R. 1371.
Liability of sureties on bond of executor or administrator c.t.a. in respect of proceeds of sale or real property which he was directed or empowered by will to sell, 91 A.L.R. 943.
Liability for debts of decedent's estate of property which has passed out of hands of beneficiary of estate in whose hands it was liable, 103 A.L.R. 1004.
Trustee's, executor's, administrator's, or guardian's purchase from or sale to corporation of which he is an officer or stockholder, as voidable or as ground for surcharging his account, 105 A.L.R. 449.
Liability to heirs, devisees, legatees, or distributees of executor or administrator or his bond in respect of invalid sale of property of the estate, 106 A.L.R. 429.
Void or voidable character of sale made in violation of statute providing that no representative making sale shall be interested therein, but confirmed by court, 111 A.L.R. 1362.
Expectant, conditional, or contingent nature of gift or bequest to person in specified relationship to decedent as preventing deduction or exemption in computing estate tax, 112 A.L.R. 266.
Construction and application of statutory provisions permitting the sale of homestead for purpose of paying decedent's debts or legacies, 116 A.L.R. 85.
Power of sale conferred on executor by testator as authorizing private sale, 11 A.L.R.2d 955.
Implied power of executor or testamentary trustee to sell real estate, 23 A.L.R.2d 1000.
Power of executor to create easements, 44 A.L.R.2d 573.
Power of executor or trustee with power to sell or to lease real property, or to do both, to give an option to purchase, 83 A.L.R.2d 1310.
Enforceability of contractual right, in which fiduciary has interest, to purchase property of estate or trust, 6 A.L.R.4th 786.